Cooper Industries, Inc. v. Aviall Services, Inc. - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in case No. 02-1192, Cooper Industries versus Aviall Services will be announced by Justice Thomas.

Argument of Justice Thomas

Mr. Thomas: This case comes to us on writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

Petitioner owned four aircraft engine maintenance facilities in Texas until 1981 when it sold them to respondent.

Respondent operated the sites for several years and then discovered that both it and petitioner had contaminated them with hazardous substances.

Respondent notified the Texas Environmental Authorities of the contamination.

The state directed respondent by letter to clean up the sites, but neither the State nor the Federal Government took judicial or administrative measures to compel the clean up.

Ultimately, respondent cleaned up the properties under the State's supervision incurring significant cost.

Respondent filed this action against petitioner under the Comprehensive Environmental Response Compensation and Liability Act, commonly referred to as CERCLA, seeking to recoup its costs.

In particular, respondent asserted a claim under CERCLA's contribution provision, Section 113(f)(1).

The District Court granted summary judgment in favor of petitioner holding that respondent could not sue under Section 113(f)(1) because it had not been subject to a civil action under CERCLA's Section 106 or 107.

A divided panel of the Fifth Circuit affirmed.

On rehearing en banc, however, the Court of Appeals reversed by a divided vote holding that a voluntary remediator such as respondent could seek contribution under Section 113(f)(1), even though it had not been subject to a Section 106 or 107 civil action.

In an opinion filed with the Clerk today, we reverse the judgment of the Court of Appeals and remand the case for further proceedings.

The first sentence of Section 113(f)(1) provides as relevant "any person may seek contribution during or following any civil action under Section 106 or under Section 107(a) of CERCLA."

The natural meaning of "may" in this sentence is that it authorizes certain contribution actions that satisfy the specified condition during or following a civil action and no others.

Reading the sentence to authorize contribution actions at any time regardless of the existence of a civil action would render the during or following-condition entirely superfluous.

The last sentence of Section 113(f)(1) which provides "nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under Section 106 or 107 does not change our conclusion."

That sentence does not itself establish a cause of action, nor does it expand Section 113(f)(1) to authorize contribution actions not brought during or following a civil action, nor does it specify what causes of action for a contribution, if any, exist outside Section 113(f)(1).

In short, Section 113(f)(1) does not support respondent's suit.

Respondent contends that it may also recover cost under Section 107(a)(4)(B).

We decline to address the issue.

First, there is a question whether respondent waived its Section 107 claim below.

Second, the merits of the Section 107 claim, if not waived, were not decided below or briefed in this Court.

They deserve full consideration in their own right.

We also decline to decide whether respondent has an implied right to contribution under Section 107 distinct from a right to cost recovery.

Justice Ginsburg has filed a dissenting opinion in which Justice Stevens joins.